Free Amended Complaint - District Court of Federal Claims - federal

Case 1:05-cv-01054-LB 09/13/2005 11: 27 8437450436
SEP-12-2005
12:27

K-CCIN Filed 03/18/2007 ,I N C . Document 14-2

FDCC LANT
Commanding Officer United State Cpest Gmfd Bacillles Design & Construcfi Cehtcr (Atl~nt~c)

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Ser. No: 0621K September 12,20
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CERTIFIED MAIL RETURN
K-Con Building Systems 2728 Spmill Ave Charleston, SC 29405

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Re: Contract No. DTCG47-03 Building, Part Huron, MI

Design and ConstrucCt Prefabricated Cutter Support

Dear Mr. Stmart:

CONTMCTING QFFICER'S F T N A L DECISION
R e f m c e is made to your daim datcd July 28,2005 in the amount o f % 118,950.68.
On January 20,2004,Contract July 10,199 1, Contract No.DTCG47-03-P-3EFK24 was entered into betwm your company and the Government far Design and Construct Prefabricated C t e utr Support Buildin5 Port Huron,MI. T h e contract a a d prica w s $582,642.00 with a wntract wr a completion date of Nuvembcr 20,2004.

Your claim letter of July 28,2005, receivedvia f a , demands p a p m t oP$l18,950,68 plus interest for failure to pay invoice 12 and mtssessmcnt of liquidated damages

In connection with your dairn, I hweby make the following findings of fact:
T~oughout Requost far Proposd'md contract award stage of tho procurement prncess, the Paragraph H.8 Liquidated Damages was included in the contract specifications. Never d u ~ n g clarification discussions and contra&negotiations did you question me use of thc Liquidated Ramagas Clause, I our fbrbearance 1ettc;r of November 16,2004 you wme remfndcd that you n would be assessed Liquidated Damages if dl work was not completed by Novmber 220,2004. I rcsponge to your d l o f Decmber 6,2004 questioning use of the Liquidated Damages n clause, we responded by letter datcd Decmber 7,2004. We advised you that we had no record of any "exception7'being taken by you regascling the Liquidated Damage clause bcing included i thc contract requirmcnts. You wcro also reminded that once the contract was awarded, you n were bawd by all the contract rcquircmmts including the Liquidated Damages dause, Our rccords indicate you were the sole cause of missing the contraa completjon date. Our records

EXHIBIT 1

Case 1:05-cv-01054-LB
09/13/2005

Document 14-2

Filed 03/18/2007

11: 27

8437450436

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show you wcre notified via mail on September 7,2004 that your 90% submittal was incomplete, On Ocbber 19,2004 we issued a Xcttm o f concern regarding your progress on the project and your submittal.submission issues. On Hovembcr 16,20041 our letter to yyu oo acknowledged your progress schedule which showed a late completion datc ofDecember 28, 2004. During the month of November therc were numerous conversations, mails, and letters regatding when you would submit your 90% submittal. I h v c no document~tion showing a government dday in this mattcr, J addition, your mail on Dccmber 28,2004 requested time n due to winter conditions, We responded the same day via mail that in ordcr Eor w to consider your requcst you had to provide infomation on the cause of the delay, impact of the delay, and show that the weather conditions wcre severe in comparison with the nomd expectd weatha during this time period. You w r also cautioned that weather impacts were not applicable i f the ee events occ~uxed afier the Novmbcr 20,2003 contract completion date, Our records indicate you did not submit information a3 requested.

Invoice 12 dated March 3 1,2005 was retumcd to you unprocessed because the Liquidated Damagc a s s m n was for 13 1 days totding $77,159.00. Remaining work to be performed seset totaled more tlnan the remaining invoice balance. Invoice 13 dated Apd 30,2005 was submitted in the exact mount a retuned invoice number 12. Invoice 13 w s certified i the amount of s a n $25,000.00 for outstanding work completed. On May 26,2005 we took substantial completion of the facility and Liquidated Damages stopped, My rccmds indicate that your total contract value is $ 529,271.47 of wbicfi. %412,885,62 bcen paid to you. A. total o f 186 days o f has liquidated damages have bcen assessed totaling $109,554.00leaving a balmcc payable upon receipt of propm invoice totaling $6,83 1.85.

Based on the above findings, there is no midencc to support your claim. You have provided no information showing why you arc not rmpomibte for the delay. Molceovcr, we arc not aware of my event or occurrence that would e x m e your later perfbmancc. nerefore, it i s my final decision to deny your claim as it relates to this issue. I do not intmd to reopen or reconsider this

matter.
This is the final daision ofthe Conlracthg Officer. You may appeal this decision to the agency board of contract appeals. If you decid~ appeal, you must, within 90 days fim~ date you to the recdve this decision, mail or otherwise furnish written notice t o the agency board of contract appeals and provide a copy of the Contracting Officer from whose decision this appeal is taken.

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Document 14-2K-CCIN, INC. Filed 03/18/2007

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Thc notico shall indicate that an appeal is intended, refermca this decision, and identify tha contract by numberpWith regard to appeals to the agency board of c o n m appeals, you may, solely at your election, procccd under the b o d s small claim procedure for claims of $50,000or less or its accelerated procedure fm claims of$100,000or lws, hstead of appealing to the agmcy board of contract appeals, yau may bring an action directly to the United States Court of Federal. Claims (except as provided in the Contract Disputes Act of 1978,41 U.S.C. 603, regarding Maritime Contracts) within 12 months of the date you recdve this decision.

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